FCC Takes a Whack at Phone Unlocking Ban -- Now It's Congress's Turn

FCC Takes a Whack at Phone Unlocking Ban -- Now It's Congress's Turn

Last week, facing pressure from the Federal Communications Commission, the major wireless carriers promised to unlock mobile devices so that they can be used on other carriers' networks when the customer's contract has expired. This follows the outcry early this year over the Library of Congress's decision to remove legal protection against Digital Millennium Copyright Act suits for people who unlock their devices to change carriers. We're happy to see the FCC take a stand and demand action from the wireless carriers, although the root of the problem—the DMCA's broad and inflexible ban on circumventing digital locks—remains for Congress to fix.

One of new FCC chairman Tom Wheeler's first acts on the job after being confirmed by the Senate in November was to demand that the major wireless carriers agree to unlock out-of-contract devices like phones and tablets so that customers could change carriers. He threatened to impose new rules on the carriers to require unlocking if the carriers didn't do it voluntarily.

Last week's agreement, labeled a "voluntary commitment," says that post-paid carriers will unlock mobile devices once the device is out of contract or otherwise paid off. Carriers promised to unlock within two days of a customer's request, and to notify customers when their devices are eligible for unlocking.

Prepaid carriers also agreed to unlock devices one year after activation. This is a key development, because some prepaid carriers have a history of suing companies that recycle and resell used phones. Prepaid carriers accused those companies of violating the DMCA, even though the DMCA was never meant for propping up wireless carriers' business models. That unintended consequence of the DMCA is one of many. While it's good to see the prepaid carriers promise to unlock phones, they left themselves a lot of wiggle room in the agreement: prepaid carriers will unlock only "consistent with reasonable time, payment, or usage requirements." This could mean that they will continue to hold their customers captive with threats of DMCA suits until they spend additional time or money with the carrier. Time will tell.

As we've written about before, the root of this problem is the DMCA. Digital locks (DRM) in consumer devices, computers, game consoles, automobiles, and other products often keep us from modifying, repairing, lending, or reselling the things we buy. Add the DMCA, which makes breaking the DRM in our own things a federal law violation, or even a crime, and the result is that we don't truly own the things we buy. While it's great to see the FCC take a whack at this problem, most personal devices and digital goods aren't in the FCC's bailiwick (and shouldn't be!).

The DMCA does contain a recognition of the problems it causes: the law outlines a process for the Librarian of Congress to establish temporary exemptions every three years. In 2006 and 2010, the Librarian approved an exemption targeted at cell phone unlocking, but opted not to in the 2012 process—a failure that ultimately got the White House and Congress involved.

Two of the FCC's five commissioners pointed out that the wireless agreement doesn't fix the DMCA. Commissioner Ajit Pai, a Republican, called the agreement a "half-step forward." Jessica Rosenworcel, a Democrat, questioned the DMCA's exemption process that turns the Librarian of Congress into a regulator of digital technology: "I think that is one powerful librarian."

A bill to temporarily remove the DMCA threat from phone unlockers was marked up by the House Judiciary Committee in July. A better bill, the Unlocking Technology Act, would fix the problem at its source, creating a broad exemption to the DMCA for anyone making lawful uses of devices and media. That bill needs your support. Please contact your members of Congress. Tell them that they need to follow the FCC's moral leadership and fix a broken and harmful law.

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